09-3153-ag
Nency v. Holder
BIA
Holmes-Simmons, IJ
A099 587 585
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 25 th day of May, two thousand ten.
PRESENT:
ROBERT D. SACK,
ROBERT A. KATZMANN,
RICHARD C. WESLEY,
Circuit Judges.
_________________________________________
NENCY NENCY,
Petitioner,
v. 09-3153-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_________________________________________
FOR PETITIONER: Aaron Shapiro, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Christopher C. Fuller,
Senior Litigation Counsel; Aaron R.
Petty, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DENIED.
Nency Nency, a native and citizen of Indonesia, seeks
review of a June 26, 2009, order of the BIA, affirming the
undated decision of Immigration Judge (“IJ”) Theresa Holmes-
Simmons, 1 which denied her application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Nency Nency, No. A099 587
585 (B.I.A. June 26, 2009), aff’g No. A099 587 585 (Immig.
Ct. N.Y. City Sept. 24, 2007). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we review the
decision of the IJ as supplemented by the BIA. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well established.
Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008);
Manzur v. U.S. Dep't of Homeland Sec., 494 F.3d 281, 289 (2d
1
On September 24, 2007, the Immigration Court issued a
summary of the IJ’s oral decision, which is noted to have
been entered the same day.
2
Cir. 2007).
The agency did not err in its determination that the
harm Nency alleged - which consists primarily of one
incident when she fled from a group of native Indonesians,
and two incidents when native Indonesian men groped her in
public - did not rise to the level of past persecution. See
Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d
Cir. 2006)(stating that “persecution does not encompass mere
harrassment”). Therefore, the agency also did not err in
denying Nency relief based on her asserted well-founded fear
of persecution, to the extent that her fear was based on the
harm she suffered in the past. See 8 C.F.R.
§§ 208.13(b)(1); 1208.16(b)(1) (mandating that only when an
applicant has established past persecution is she presumed
to have a well-founded fear of persecution). Finally,
because Nency does not challenge the BIA’s dispositive
grounds for rejecting her “pattern or practice” claim –
namely, that she failed to raise the claim before the IJ –
we do not reach this issue. See Shunfu Li v. Mukasey, 529
F.3d 141, 146 (2d Cir. 2008).
Because the agency did not err in concluding that Nency
failed to establish a well-founded fear of persecution if
3
returned to Indonesia, the agency’s denial of her
application for asylum, withholding of removal, and CAT
relief was not in error insofar as all three claims shared
the same factual predicate. See Paul v. Gonzales, 444 F.3d
148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of
Justice, 426 F.3d 520, 523 (2d Cir. 2005).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
4